Johns v Morris t/as Andrew Morris Constructions [2014] NSWCATCD 33

Johns v Morris t/as Andrew Morris Constructions [2014] NSWCATCD 33

The builder entered an oral contract to perform residential building work and the statutory warranties in section 18B of the Home Building Act 1989 applied. The accepted expert evidence established that the work was defective and breached applicable standards, good building practice and the Building Code of Australia. Because Mr Johns was an owner-builder, the successors in title had a good cause of action under section 18C, making settlement of their Tribunal claim appropriate and prudent. The settlement was reasonable to the extent of $24,150 for rectification and $1,126.95 for the expert report, but not for legal fees, so the builder was liable to pay $25,276.95.

Jurisdiction
Australia
Judgment Date
02 April 2014
Procedural Posture
Building Claim for Payment of Money Arising From Alleged Defective Residential Building Work / Principal Judgment After Hearing
Outcome
Application allowed in part; respondent ordered to pay the applicants $25,276.95 immediately.
Legal Topics
['statutory Warranties' 'defective Residential Building Work' 'owner Builder Liability to Successors in Title' 'reasonableness of Settlement' 'rectification Costs']
['home Building' 'consumer and Commercial' 'contract' 'damages'] ['statutory Warranties' 'defective Residential Building Work' 'owner Builder Liability to Successors in Title' 'reasonableness of Settlement' 'rectification Costs']

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Procedural Posture

Building Claim for Payment of Money Arising From Alleged Defective Residential Building Work / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Tribunal had jurisdiction to determine the owners' building claim." 'Whether the builder breached statutory warranties implied by section 18B of the Home Building Act 1989 by performing defective residential building work.' 'Whether the owners could rely on the amount paid in settlement to successors in title as damages against the builder.' 'Whether the settlement amounts for rectification costs, expert report costs and legal fees were reasonable and recoverable.' 'Whether the builder avoided liability because the owners supplied materials, because he was not offered rectification, or because council allegedly approved the work.']

Ratio Decidendi

The builder entered an oral contract to perform residential building work and the statutory warranties in section 18B of the Home Building Act 1989 applied. The accepted expert evidence established that the work was defective and breached applicable standards, good building practice and the Building Code of Australia. Because Mr Johns was an owner-builder, the successors in title had a good cause of action under section 18C, making settlement of their Tribunal claim appropriate and prudent. The settlement was reasonable to the extent of $24,150 for rectification and $1,126.95 for the expert report, but not for legal fees, so the builder was liable to pay $25,276.95.

Court Disposition

Application allowed in part; respondent ordered to pay the applicants $25,276.95 immediately.

Orders

  • ['The respondent must pay the applicants the sum of $25,276.95 immediately.']